Plaintiffs
bought defendants' whey protein supplements, because the
product labels said that they contained 60 grams of protein
per serving. It turns out that the products did not contain
60 grams of whey protein, as plaintiffs believed, but 60
grams of a combination of whey protein, free-form amino
acids, and other non-protein ingredients. Plaintiffs seek to
represent a nationwide class and bring claims under consumer
fraud statutes of Illinois, New York, and eight other states,
as well as claims for breach of express warranty and unjust
enrichment. Defendants move to dismiss plaintiffs'
claims.

To
survive a motion to dismiss under Rule 12(b)(6), a complaint
must contain factual allegations that plausibly suggest a
right to relief. Virnich v. Vorwald, 664 F.3d 206,
212 (7th Cir. 2011) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 554, 558 (2009)). “The purpose
of a motion to dismiss is to test the sufficiency of the
complaint, not to decide the merits.” Triad
Assocs., Inc. v. Chicago Hous. Authority, 892 F.2d 583,
586 (7th Cir. 1989). With a 12(b)(6) motion, a court may only
consider allegations in the complaint, documents attached to
the complaint, and documents that are both referred to in the
complaint and central to its claims. Levenstein v.
Salafsky, 164 F.3d 345, 347 (7th Cir. 1998). A court
must construe all factual allegations as true and draw all
reasonable inferences in the plaintiff's favor, but a
court need not accept legal conclusions or conclusory
allegations. Virnich, 664 F.3d at 212 (citing
Ashcroft v. Iqbal, 556 U.S. 662, 680-82 (2009)).

According
to the nutrition information on the back label, under the
heading “Supplement Facts, ” Body Fortress Super
Advanced Whey Protein contained 30 grams of protein and 60%
of the “Daily Value” (also known as the Daily
Reference Value) for protein, per scoop. [30] ¶¶
33, 44. A serving of 2 scoops contained 60 grams and 120% of
the Daily Value for protein. [30] ¶ 44. The label on the
front of the product contained the statement, “60g
Premium Protein.” [30] ¶ 50. On other parts of the
label, the following additional statements appeared:

4) Whey is the preferred protein source in sports and
bodybuilding nutrition because it contains superior quality
Branched Chain Amino Acids-made up of Leucine, Isoleucine and
Valine-which are important for the maintenance of muscle
tissue; and

[30] ¶ 59. And the label also contained graphs
explaining the benefits of ingesting whey protein. [30]
¶ 60. The label of Body Fortress Super Advanced Whey
Isolate (a product that plaintiffs did not purchase),
contained a similar assortment of statements and graphs, and
both Whey Isolate and Met-Rx MyoSynthesis Whey listed
nutrition information on the back label, including their
protein content expressed both in grams and as a percentage
of Daily Value. [30] ¶¶ 45-46, 52, 63- 64.
Plaintiffs believe that all of these statements (with the
exception of the grams of protein per serving size stated on
the back label), along with the products' names
themselves, were false and misleading and did not comply with
federal regulations, because they overstated the amount of
whey protein in the products. [30] ¶¶ 65-67.
Plaintiffs allege that defendants engaged in a practice known
as “protein-spiking, ” “nitrogen-spiking,
” or “amino-spiking” in the manufacture of
its whey protein products. [30] ¶ 17. This practice
exploited the fact that the protein content of foods is
sometimes measured indirectly-by testing for the nitrogen
content and multiplying that measurement by a factor of
6.25-and resulted in an inflated measurement on a
product's label. [30] ¶ 36. Whey protein is a
complete protein source, rich in branched-chain amino acids
which are metabolized directly within the muscles. [30]
¶ 14. But defendants included in their whey protein
products cheaper, less beneficial free-form amino acids,
which are not absorbed as effectively, and not considered to
be protein. [30] ¶¶ 17, 31. Plaintiffs allege that
defendants also included in their products other non-protein
ingredients. [30] ¶ 17. Because these free-form amino
acids and additional ingredients contain nitrogen, and the
defendants measured protein content by identifying
nitrogen-containing compounds, the free-form amino acids and
non-protein incredients contributed to the product's
reported total protein content. [30] ¶¶ 17-18.

According
to plaintiffs, because the products' labeling highlighted
the protein content, defendants should have used an
alternative method to calculate those amounts. [30]
¶¶ 24, 37. That alternative method, the Protein
Digestibility-Corrected Amino Acid Score, measures the
protein quality of the food and requires the manufacturer to
determine the amount of essential amino acids contained
within the product. [30] ¶¶ 24, 26-28. The
digestibility-corrected score provides a more precise
measurement of the protein content of the product, excluding
free-form amino acids and other non-protein ingredients. [30]
¶ 47. Because defendants used the ...

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